Solberg v. Kane, KCD
| Decision Date | 03 May 1976 |
| Docket Number | No. KCD,KCD |
| Citation | 536 S.W.2d 885 |
| Parties | Frederick M. SOLBERG, Jr., and Elizabeth T. Solberg, Respondents, v. Patricia Lenore KANE, Appellant. 27089. |
| Court | Missouri Court of Appeals |
Thomas J. Cox, Jr., Shirkey & Cox, Kansas City, for appellant.
Donald G. Stubbs, Steven J. Borel, Stubbs, Epstein & Mann, Kansas City, for respondents.
Before SHANGLER, P.J., and SWOFFORD and SOMERVILLE, JJ.
Plaintiffs, hereinafter referred to as buyers, brught suit against defendant, hereinafter referred to as seller, for specific performance of a contract for the sale of certain real property. Seller resisted performance at the trial level on the ground that there was no 'mutuality of obligation' since the buyers could avoid performance at their sole and absolute discretion, and on the further ground that the contract was the result of 'deception, duress and undue influence' exerted upon her.
The trial court found in favor of the buyers and entered a judgment in their favor compelling specific performance by the seller. On appeal the seller continues to resist performance on the two grounds heretofore stated, and, additionally, claims the judgment entered by the trial court should be reversed because '(e)rror was committed in allowing the trial to proceed in the absence of (seller), thereby prejudicing (seller's) right to participate in her defense.'
Seller bottoms her defense of lack of 'mutuality of obligation' on the following language found in the contract relative to payment of the balance of the purchase price: Seller further refines this defense by arguing that the particular language, 'on terms acceptable to buyer', rendered any obligation on the part of the buyers to purchase the real estate illusory because what might constitute 'acceptable' terms was left to their unbridled whim and caprice.
If the controversial provision is susceptible of a fair and reasonable construction, then it must be so construed in this action for specific performance. Herzog v. Ross, 355 Mo. 406, 196 S.W.2d 268 (banc 1946). The baic and most material terms of the loan to be obtained by the buyers were specifically delineated--the amount, minimum term, and maximum rate of interest. The language, 'on terms acceptable to buyer', could only relate to residual loan terms. Since the contract did not specifically delineate any residual loan terms, the language, 'on terms acceptable to buyer', is susceptible of being fairly and reasonably construed as subjecting the buyers to residual loan terms in conformity with those prevailing in the market place for comparable loans. So construed, the contractual provision relied upon by seller, contrary to the position taken by her, did not constitute an escape clause which the buyers could invoke arbitrarily, capriciously or in bad faith. Skelly Oil Company v. Ashmore, 365 S.W.2d 582 (Mo. banc 1963). So construed, 'acceptable' residual loan terms were susceptible of being measured by extrinsic facts and in no way dependent upon the personal whim or fancy of the buyers. Herzog v. Ross, supra; Mullally v. Greenwood, 127 Mo. 138, 29 S.W. 1001 (1895); Restatement of Contracts § 265 (1932). A contract for the sale of real property containing a clause making it conditional upon buyer obtaining a loan, standing alone, does not render the contract unenforceable for want of mutuality of obligation and the seller in the instant case has not questioned this basic proposition. Langley v. Norris, 141 Tex. 405, 173 S.W.2d 454 (1943); Nelson v. Jenkins, 214 S.W.2d 140 (Tex.Civ.App.1948); and Pease v. Brown, 186 Cal.App.2d 425, 8 Cal.Rptr. 917 (1960). The contract in question was supported by adequate consideration--mutual promises binding on the respective promissors, i.e. seller's promise to sell and buyers' promise to buy.
The seller's attempt to avoid performance on the ground that the contract was the result of 'deception, duress, and undue influence' exerted upon her is not well taken. This defense is predicated solely on the seller's own testimony and...
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